Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.4197/19
in Summary Suit No.2832/2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No. 4197 of 2019
(CNR NO. MH CC010011082019)
In
SUIT No.2832 OF 2019
Mr. Noor Ahmad Zahoor Ahmad Shaikh ....Plaintiff
V/s.
1. Zahida Maqbool Saikh
2. Maharashtra Housing Area & Development Authority ....Defendants
Appearance:
Mr. Kabir Shette, Advocate for the Plaintiff.
Mr. R.P.Wagh, Advocate for the defendant No.1
Mr. Satamkar, Advocate for the defendant No.2
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 19 th November, 2019.
ORDER
1. This Notice of Motion is taken out by plaintiff for restraining
defendant No.1, his representatives, agents or persons calming through
her from attempting to disturb, interfere, prevent or obstruct to plaintiff
from carrying out salon business from the suit premises i.e. Shop No.1,
Ground Floor, 385, Pine Building, Reay Road (369 Ready Road),
Barrister Nath Pai Marg, Mazgaon, Mumbai400 010.
2. In support of notice of motion, plaintiff has filed affidavit
and has relied on the contentions in the plaint. It is submitted that if the
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relief as prayed are not granted in plaintiff's favour, he will suffer grave,
irreparable loss, harm and injury which can not be compensated in terms
of money.
3. The written statement of defendant No.1 is tendered on
record. It is contended by defendant No.1 that the suit is not
maintainable and the same is filed without cause of action. It is further
contended that the plaintiff had already left the suit premises during the
life time of his father and settled down at Room No. 210, Varsala
Apartment, Sector19A, Nerul (W) alongwith his family. Since then
defendant No.1 alongwith her father in law and her husband are in
actual use, occupation and possession of suit premises.
4. It is further contended that the suit premises were originally
stand in the name of Zahoor Ahamad Abdul Gafoor, who is father of
husband of defendant No.1 and plaintiff. The suit premises is divided in
two parts. At front side there is salon about 8' x 10' and at the rear side
there is residence room about 10' x 12' . There is upper floor at about
8' X 10' . Zahoor Ahamad Abdul Gafoor and husband of defendant No.1
were running salon business from the suit premises and were residing in
rear side room and upper portion of the suit premises. Zahoor Ahamad
Abdul Gafoor died on 20.09.2015 and the husband of defendant No.1
died on 14.09.2017. At that time, the defendant No.1 and her children
were in actual use, occupation and possession of the suit premises.
After death of husband of defendant No.1, plaintiff has created problem
to the defendant No.1 and her family. It is further contended that the
plaintiff and his son used to threaten the defendant No.1 for vacating the
suit premises or for payment of 50% share in the every day income from
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in Summary Suit No.2832/2019
the suit premises. Therefore, defendant No.1 lodged complaint on
6.02.2019, 21.02.2019 and 26.02.2019 with Commissioner of Police,
Additional Commissioner of Police, Deputy Commissioner and Senior
Inspector of Byculla Police Station. The letter dated 29.03.2011 to the
Senior Inspector of Byculla police station was also issued by the Advocate
of defendant No.1 for necessary protection. Eventually, plaintiff was
called in the police station and was warned not to harass defendant No.1
and her family. It is also alleged that the plaintiff threatened to evict the
defendant No.1 from the suit premises and the incident of snatching of
hairs of defendant No.1 by plaintiff and trying to pull down her from the
suit premises was captured by the daughter of defendant No.1 in the
mobile phone. For all these reasons, it is prayed that the notice of
motion may kindly be dismissed with cost.
5. Defendant No.2 has not filed any reply to the said notice of
motion.
6. Considering the rival pleadings of parties, following points
are framed and findings thereon with the reasons are stated as below.
SR. NOS. POINTS FINDINGS
1. Whether the plaintiff has
established prima facie case ?
No
2. Whether balance of convenience
tilt in favour of plaintiff ?
No
3. Who would suffer irreparable loss
if relief of injunction is granted ?
To the defendant
No.1
4. What Order ? As per final order
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As to point No.1
7. It is not disputed that the defendant No.1 is wife of elder
brother of plaintiff. It is also not disputed that earlier father of plaintiff
and husband of defendant No.1 was tenant of the suit premises. Rent
receipts issued in the name of Zahoor Ahamad Abdul Gafoor are filed on
record from both the sides. The death of Zahoor Ahamad Abdul Gafoor
on 20.09.2015 and death of husband of defendant No.1 on 14.09.2017 is
also an admitted fact. Record shows that the address of plaintiff and
defendant No.1 are same as shown in the plaint.
8. Heard arguments of learned Advocate of plaintiff, defendant
No.1 and defendant No.2 at length. According to plaintiff he is carrying
salon business from the suit premises. On the other hand, it is the
contention of defendant No.1 that after death of father of plaintiff, her
husband was carrying on salon business from the suit premises. In order
to support their contentions, plaintiff and defendant No.1 have placed on
record the photographs of salon shop. Plaintiff has relied on the copies
of Ration Card, Aadhar Card, Passport, Election Card of plaintiff and his
family members. Copy of notice issued by Special Land Acquisition
Officer MHADA dated 28.01.1987, is also relied by plaintiff. Copy of
complaint dated 26.03.2019 addressed to the Commissioner of Police,
Mumbai for registering F.I.R. against defendant No.1 and others
assaulting family members and committing criminal trespass is also filed
by plaintiff on record. All these documents prima facie reflects that the
plaintiff is resident of New Rose Hair Dresser, Pine Building, Shop No.
369, Barrister Nath Pai Marg, Mazgaon, Mumbai400 010. In this
respect, on perusal of address of the defendant No.1 mentioned in cause
title of the plaint, it shows the same address of plaintiff which is shown
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of defendant No.1. Therefore, it appears that the plaintiff as well as
defendant No.1 are residents of New Rose Hair Dresser, Pine Building,
Shop No.369, Barrister Nath Pai Marg, Mazgaon, Mumbai400 010.
According to defendant No.1, the plaintiff is residing at Room No. 210,
Varsala Apartment, Sector19A, Nerul (W). However, in order to support
her contention, prima facie no document is tendered by defendant No.1
to show the residence of plaintiff in the said premises.
9. Admittedly, the rent receipt of the suit premises was issued
in the name of father of plaintiff and husband of defendant No.1.
Additional affidavit of defendant No.1 is filed on record alongwith
Electricity Bill of November2019 of the Ground Floor, Plot No.385, Pine
Building, Barrister Nath Pai Marg, Mazgaon, Mumbai400 010. The
health renewal receipt issued by MCGM is also tendered by the
defendant No.1 in order to show that the amount of Rs.15,936/ was
paid for license No.761415593 which is valid from 01.01.2018 to
31.12.2020. The said receipt shows that payment is made on 11.11.2019
i.e. after filing the present suit.
10. Considering the entire documents relied on behalf of
plaintiff and defendant No.1, it has prima facie came on record that the
plaintiff and defendant No.1 are residents of suit premises which also
includes Shop No.369. Plaintiff has not submitted any documents to
show that salon business is carried on by plaintiff in the suit premises.
Therefore, at this stage inference can not be drawn that the plaintiff is
carrying on salon business in the suit premises. Eventually, as the
plaintiff has not proved any prima facie case, I answer point No.1 in
negative.
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As to point No.2 and 3.
11. So far as balance of convenience and irreparable loss is
considered, plaintiff would not suffer any irreparable loss if the relief of
temporary injunction is refused. As prima facie, there are no documents
tendered on record which are evident to show that he is carrying on
salon business in the suit premises, therefore point No.2 and 3 are
answered accordingly.
As to point No.4
12. In view of forgoing discussion, I am of the opinion that as
plaintiff failed to prove prima facie case, he is not entitled for temporary
injunction as sought. Resultantly, I pass following order.
ORDER
1) Notice of Motion No.4197/2019 is dismissed.
3) Notice of Motion No. 4197/2019, is disposed off accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 19/11/2019
Dictated on : 19.11.2019
Transcribed on : 20.11.2019
Signed on : 22.11.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
22.11.2019 3.10 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 19.11.2019
Order signed by P.O. on 22.11.2019
Order uploaded on 22.11.2019
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